As the amended deadline for responses to the consultation on Scottish Child Law draws nearer, today I will deal with the proposed reforms in relation to the presumption that a child aged 12 or more is of sufficient age and maturity to express a view in section 11 cases (that is to say, those cases concerning contact, residence, parental rights and responsibilities etc).

As we have previously mentioned in this series of blogs, where a court is being asked to make a decision about the care arrangements for a child the court has an obligation to give a child the opportunity to express their views, and where appropriate take those views into account. There is a legal presumption that a child of 12 years of age or more is of sufficient age and maturity to form a view. That said, this doesn’t always mean that a child’s view is determinative, as what may be in the best interests of a child may not necessarily align with their views. This also does not mean that a child under 12 cannot express their view to the court.

In looking at whether the presumption should be changed, it is important to highlight how views are taken. Currently, there a variety of ways in which children’s views are taken. The most common way, for children over 12, is a form F9. This (child friendly) form is usually sent out by the Pursuer’s solicitor to the child at the same time as the Initial Writ is served on the Defender, and is filled out by the child. Whether or not that form is intimated to the child is at the discretion of the court. If a child is over 12, having regard to the presumption, the court will usually allow the form to be intimated unless there is a compelling reason as to why not. Likewise, having regard to the presumption, if a child is under 12 the usual practice is that intimation of the form will be dispensed with, but if it is felt that they are of sufficient maturity to be able to fill out the form (or indeed are very close to their 12th birthday), then an argument can be made for the court to allow the form to be intimated and exceptions can be made.

It is of note that often, where it is felt that a form F9 would be inappropriate, but a child expresses a clear wish to share their views or where they have particularly strong views, a reporter (who is usually a solicitor) is instead appointed by the court to prepare a child welfare report. Usually, the reporter will then attend either the child’s home, school, or both, and speak with them directly to ascertain their views. The reporter may also speak to their parents, and in some cases (albeit not all depending on the exact remit of the report ordered by the court) make a recommendation to the court. This means that the child’s view is heard by the court, albeit relayed by an independent third party.

The consultation asks us to consider whether the presumption that a child of 12 years of age or more is of sufficient age and maturity to form a view should be removed (or replaced with a different age).

The main argument for removing the presumption is that it may lead to more children under the age of 12 having their voices heard. By doing so, it appears that we would be more compliant with article 12 of the UN Convention on the Rights of the Child.

My concern would be that, in the absence of any presumption, the courts would have to devise their own tests of maturity, which in theory could end up being more restrictive than what we already have and there also seems to be a danger of inconsistency. After all, what we have is just a presumption, and it can with good reason be deviated from as the law currently stands.

In my experience, where a form F9 has not been intimated to a child (due to their age, or for other reasons), but the child wishes to express a view, or has a firm view, then this usually becomes clear to the court from the parties’ written cases. In those circumstances, the court will not make any permanent decision without at least affording the child the opportunity to express those views.

The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.